Citation Nr: 0734374
Decision Date: 11/01/07 Archive Date: 11/19/07
DOCKET NO. 06-29 765 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent
for sciatica of the right lower extremity.
2. Entitlement to an initial rating in excess of 10 percent
for sciatica of the left lower extremity.
3. The propriety of the reduction of the disability rating
for a low back disability from 40 to 10 percent disabling,
effective March 28, 2007.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Simone C. Krembs, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1966 to
October 1969.
This matter comes before the Board of Veterans' Appeals
(Board) from November 2005 and April 2007 rating decisions of
a Department of Veterans Affairs (VA) Regional Office (RO)
that granted service connection and awarded a 10 percent
disability ratings for sciatica of the right and left lower
extremities, and reduced the disability rating for the
veteran's service-connected low back disability from 40 to 10
percent disabling, effective March 28, 2007. In June 2007,
the veteran testified before the Board at a hearing that was
held at the RO.
In correspondence received in June 2007, the veteran raised a
new claim of entitlement to total disability rating for
compensation based on individual unemployability due to the
veteran's service-connected disability (TDIU). The Board
refers this matter to the RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center in Washington, D.C.
REMAND
Additional development is needed prior to further disposition
of the claims.
With respect to the claim regarding the propriety of the
reduction of the disability rating for the veteran's service-
connected low back disability from 40 to 10 percent
disabling, effective March 28, 2007, in correspondence
received in June 2007, the veteran disagreed with the RO's
reduction of the disability rating assigned to his low back
disability. It does not appear from a review of the claims
folder that the veteran has been issued a statement of the
case on this issue. Where a notice of disagreement has been
filed with regard to an issue, and a statement of the case
has not been issued, the appropriate Board action is to
remand the issue for issuance of a statement of the case.
Manlincon v. West, 12 Vet. App. 238 (1999).
With regard to the ratings assigned for the veteran's
sciatica of the right and left lower extremities, VA's duty
to assist includes a duty to provide a medical examination or
obtain a medical opinion only when it is deemed necessary to
make a decision on the claim. 38 U.S.C.A. § 5103A(d);
38 C.F.R. § 3.159(c)(4) (2007); Robinette v. Brown, 8 Vet.
App. 69 (1995). In this case, while the veteran was afforded
a VA neurological examination in October 2005, he did not
undergo EMG or nerve conduction studies and thus the report
of examination does not adequately describe the current level
of severity of the veteran's sciatica. On remand, the
veteran should be afforded neurological examinations of the
right and left lower extremities, such that the relevant
diagnostic information may be elicited.
Accordingly, the case is REMANDED for the following actions:
1. Send the veteran and his
representative a statement of the case
on the issue regarding the propriety of
the reduction of the disability rating
for the veteran's service-connected low
back disability from 40 to 10 percent
disabling, effective March 28, 2007.
He should be informed of his appeal
rights.
2. Schedule the veteran for a
neurologic examination to determine the
nature and severity of his service-
connected sciatica of the right and
left extremities. The claims file must
be made available to the examiner for
review in connection with the
examination. The purpose of this
examination is to ascertain the current
nature and extent of the appellant's
service-connected sciatica of the right
and left extremities and to identify
all nerves affected by the service-
connected disabilities and the nature
and degree of any functional impairment
caused by such disability, as opposed
to that caused by other non-service-
connected or non-neurologic conditions.
The examiner should provide a complete
rationale for all conclusions reached.
Special diagnostic studies including
EMG or nerve conduction studies should
be performed. The examiner should
describe all neurological
symptomatology due to the appellant's
service-connected low back disability.
The Diagnostic Codes applicable to
nerve impairment distinguish the types
of paralysis--complete and incomplete.
For incomplete paralysis, the degree of
paralysis is further divided into
categories: severe, moderately severe,
moderate, and mild. With these
categories in mind, the examiner should
classify the appellant's right and left
lower extremity impairments,
distinguishing among the categories and
using the results of all pertinent
testing of record.
If the examiner uses results obtained
from an EMG or nerve conduction
velocity tests or other such tests, the
examiner is requested to explain, in
terms meaningful to a layperson, the
baseline results versus those obtained
for the appellant. The examiner is
asked to explain the meaning of any
abnormal results that are obtained.
The examiner should distinguish
findings related to the service-
connected right and left sciatica
disabilities and those related to non-
service-connected and non-neurologic
conditions, if any.
The examiner is further requested to
explain in detail what limitation of
motion or limitation of function is
caused by the right and left lower
extremity nerve disabilities and what
limitation of motion or limitation of
function is caused by non-neurologic
conditions, if any. The neurologist is
requested to report whether the
appellant suffers from any tics, pain,
numbness, foot drop, muscle weakness,
or atrophy due to the service-connected
right and left lower extremity nerve
disability.
3. Then, readjudicate the claims for
increased initial ratings for the
service-connected sciatica of the right
and left lower extremities. If the
action remains adverse to the veteran,
issue a supplemental statement of the
case and allow the appropriate time for
response. Then, return the case to the
Board.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112
(West Supp. 2006).
_________________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).